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Pressure Increases on Nifong to Step Aside in Duke Case

Ethics charges filed against the prosecutor at the center of the Duke lacrosse sexual assault case might constitute a conflict of interest that forces him off the case, legal experts said.

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RALEIGH, N.C. — Ethics charges filed against the prosecutor at the center of the Duke lacrosse sexual assault case, Durham District Attorney Mike Nifong, might constitute a conflict of interest that forces him off the case, legal experts said.

"It's hard for me to imagine how he can be effective as an advocate, with either the court or a future jury, when he has ethics charges pending against him ... concerning his conduct of this very same case," said Joseph Kennedy, a University of North Carolina law professor.

The North Carolina Bar filed the ethics charges Thursday, accusing Nifong of violating four rules of professional conduct by making misleading and inflammatory comments about the athletes under suspicion.

On Friday, the North Carolina Conference of District Attorneys (NCCDA) issued a statement that called for Nifong to recuse himself from the Duke lacrosse case. Kennedy said Nifong should recuse himself, but added that the judge overseeing the case could also order his removal. The ethics charges carry penalties that range from admonishment to disbarment.

Also on Friday, defense attorneys filed a motion to use a witness called by the prosecution as their own.

The state bar said it had opened a case against Nifong on March 30, a little more than two weeks after a 28-year-old woman hired to perform as a stripper at a lacrosse team party said she was gang-raped.

The ethics charges will be heard by a three-person panel from the state's Disciplinary Hearing Commission, made up of lawyers and non-lawyers, at a forum similar to a trial. Under the rules, a date for the hearing must be set between 90 and 150 days from the day of the complaint.

"I promise you, none of the 20 (people on the commission) would raise their hand and say, 'I would be glad to serve on that panel,'" Louisburg attorney Charles Davis told WRAL.
Davis has been practicing law in Franklin County for 45 years. He's a former president of the State Bar, a former chairman of the state Ethics Committee and now serves on the Disciplinary Commission.
Because the panel decides the fate of an attorney's livelihood, Davis said the task is far from easy.
"It's not a very pleasant thing to do," Davis said. 

Davis said he does not know if he will be appointed to the panel that will hear the Mike Nifong case. However, he said he does know that he has never seen a State Bar complaint filed against a sitting district attorney.

The NCCDA, which has no regulatory authority, is made up of the state's elected district attorneys.

The group's statement Friday said, in part, that the organization believes: "It is in the interest of justice and the effective administration of criminal justice that Mr. Nifong immediately withdraw and recuse himself from the prosecution of these cases and request the cases be assigned to another prosecutorial authority."

The organization also said it had offered unsolicited help to Nifong in a September letter, including extra assistant district attorneys. The help has not been accepted at this date, the organization said.

Garry Frank, president of the NCCDA, told WRAL by telephone Friday that the executive board chose its words carefully after reviewing Nifong's handling of the case.

“It is the unanimous statement of the officers of the Conference of District Attorneys," Frank said.

Nifong, who won election in November after having been appointed to the job earlier, is scheduled to take his oath of office in a mass swearing-in ceremony for various county employees on Tuesday.

"I'm not really into the irony of talking to reporters about allegations that I talked to reporters," Nifong said outside of his office Friday. He declined to answer any other questions.

In an October interview with The Associated Press, Nifong said his only regret in handling the case was speaking so often to the media early in the investigation.

"Certainly what I was trying to do was to reassure the community, to encourage people with information to come forward," Nifong said. "And that was clearly not the effect."

 WRAL contacted attorney Joe Cheshire, who represents one of the accused players. He said none of the defense attorneys, the accused players, or their families will comment on the complaint.

The bar cited 41 quotations and eight paraphrased statements made to newspaper and TV reporters, saying many of them amounted to "improper commentary about the character, credibility and reputation of the accused."

Among them:

  • Referring to the lacrosse players as "a bunch of hooligans."
  • "I am convinced there was a rape, yes, sir."
  • "One would wonder why one needs an attorney if one was not charged and had not done anything wrong."

Nifong also is charged with breaking a rule against "dishonesty, fraud, deceit and misrepresentation." The bar said that when DNA testing failed to find any evidence a lacrosse player raped the accuser, Nifong told a reporter the players might have used condoms.

According to the bar, Nifong knew that assertion was misleading, because he had received a report from an emergency room nurse in which the accuser said her attackers did not use condoms.

Last week, Nifong dropped the rape charges against the athletes after the stripper wavered in her story, saying she was no longer certain she was penetrated vaginally with a penis, which is the North Carolina legal standard for rape, as she had claimed several times before. The men still face charges of kidnapping and sexual offense.

Stan Goldman, who teaches criminal law at Loyola Law School in Los Angeles, questioned how the ethics charges will affect the case should Nifong continue as its prosecutor.

"Is this going to result in him treating the case more gingerly and deciding it's not worth pursuing, or is he going to get his back up and decide he's got to pursue this case to the end regardless?" Goldman asked.

The athletes, Reade Seligmann, Collin Finnerty and David Evans, have maintained their innocence and called the charges "fantastic lies." The case is not expected to go to trial before the spring.

In its motion regarding the witness, the defense focused on Brian Meehan, who heads up a private DNA lab that tested samples of genetic material collected in the case. Defense attorneys have criticized the Meehan for not initially providing a full report of the lab's findings.

The lab found several DNA samples on the accuser and her underwear, none of which matched any member of the lacrosse team. Meehan said in a Dec. 15 court hearing that he and Nifong had agreed not to release details of the report that didn't pertain to Seligmann, Finnerty or Evans in order to protect the privacy of individuals not charged in the case.

In their motion, defense attorneys said they plan to use Meehan's testimony that DNA samples from several men were found on the accuser's body and in her clothes.

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